Swapnil Tripathi is fourth year Law student at the National Law University, Jodhpur.

The
erstwhile state of Andhra Pradesh has drawn much attention amongst
Indian media & legal scholars for a while now. Its bifurcation,
which has been a reality envisaged since the time of the Gentleman’s
Treaty has marked the beginning of a new chapter in the Indian
polity.[1] While the constitutional questions in this matter are several
and complex, a more recent and interesting situation arising from this
plethora of questions boils down to the discourse concerning the
legitimacy of Telangana Government’s Ordinance (“Ordinance”) dated 17th June, 2017, wherein it has amended the Telangana State Gaming Act, 1974 , prohibiting online rummy.

A perusal of the objects and reasons of the Ordinance shows that it
has been introduced due to the rampant rise of online rummy amongst the
student community, affecting their family life. Some have also stated, a
threat to public order as the motive of the state government behind the
introduction. The Deputy Chief Minister of the state however, has
termed the reason to be the game becoming a mafia and instances of fraud
being reported.[2]

Before moving on to the details of the aforesaid Ordinance, let me
provide you some context. While adopting the Constitution of India, its
makers attempted to incorporate the best policies and practices in the
world. One such cardinal principle was the separation of power as
propounded by Montesquieu. The principle provided that instead of
vesting the power in one body of the state, the power should be divided
into three branches of the government i.e. Executive, Legislature and
the Judiciary.[3] When a law is inconsistent with the Constitution, it
is struck down by the Courts, and these precedents carried the binding
value of law[4], marking the place of the judiciary as the watchdog. The
basic premise on which this separation of powers rested was the
camaraderie between the three organs. However, there have been
instances, such as the passing of this Ordinance, wherein this
camaraderie has been questioned.

The Ordinance passed undertakes the task of amending certain key
provisions of the erstwhile Act. It makes the law applicable to virtual
technologies by penalizing online gaming as well. However, the most
contentious amendment is the change in the definition of ‘skill game’
and ‘rummy’ by virtue of adding two explanations.

Explanation to Section 15 now reads:

“A skill game is a game which is totally based on skill and ability of the person and not otherwise.

Any game which depends partly on skill and partly on luck or chance cannot be termed as skill game.

Rummy is not a skill game as it is involved partly skill and partly luck or chance.”

Before the author attempts to explain the problem with the Ordinance,
a little background to the Act is necessary. The state legislature
under Entry 34, List II of Schedule VII of the Indian Constitution is
empowered to pass laws on the subject matter of ‘betting and gambling’.
Furthermore, many states including Telangana passed their respective
Gaming Acts, wherein they prohibited any game which was played for
waging, betting or gambling.

These laws provided an exception wherein a game involving skill was
exempted from the application of the Act. The Ordinance of the Telangana
government, removes this exception by making the game of rummy which
involves partial skill, punishable under the Act.

The major problem with the Ordinance is that it tries to circumvent
various Supreme Court judgments which have held the game of rummy to be
outside the purview of gambling. Noteworthy here are the judgments of KR Lakshmanan v. State of Tamil Nadu,[5] State of Andhra Pradesh v. K Satyanarayana.[6]

The Apex Court in Lakshmanan saw the state legislature
trying to bring horse racing within the ambit of gambling. The Apex
Court struck the provision down and held that the activities wherein an
element of chance exists but its success depends upon knowledge,
training, attention, experience of the player, are not games of chance
but of skill. Furthermore, the Court in Satyanarayana, saw the
Andhra Pradesh government arrest people for playing rummy, terming it
an act of gambling. The Court not only deemed such an arrest illegal but
also categorically laid down that the game of rummy is predominantly a game of skill.

The inclusion of rummy under a game of chance is absurd not only
because it is an attempt to circumvent the judgments of the Apex Court,
but also because rummy does not fulfil the essentials of gambling. If a
perusal of judgments on the aspect of gambling and betting are
undertaken, it is crystal clear that the essence of those activities is uncertainty followed by an unexpected result.
These factors are not predominant in a game of rummy, as the game
requires the skill, attention and experience of the player.
Additionally, if a contextual interpretation is undertaken, the other
activities which have previously been held to be a game of chance are
lotteries, game of dice etc. which have no element of skill involved.

The Ordinance has not only brought worries to the players but also to
the club owners, which host such rummy players. Furthermore, the
business houses who offered real money to online rummy players, are at a
huge loss as they have had to stop their operations at once and put a
halt to the investment made by them in this venture. Furthermore, an
infrastructural set back is created as one out of the 29 states now
prohibits it, causing for this interstate empire to decline.[7]

The Ordinance due to its far reaching impact, has been challenged
before the High Court and is pending adjudication. However, the fact
remains that such an act by the state executive to circumvent the
judiciary, leaves an indelible impression on the ideal concept of the
separation of powers and might be seen by some as tarnishing of this
ideal camaraderie.